Kyle Best, then 18, pleaded guilty to three motor vehicle violations, including using a handheld device while driving.

The Kuberts are now suing him for civil damages as a distracted driver, and in a novel twist also sued his girlfriend for sending him text messages while he was driving, thus distracting him. Phone records show they exchanged 62 texts that day.

Skippy Weinstein, the Kuberts' lawyer, argues Colonna was "electronically present" in the crash. He says she should have known Best was driving home as they exchanged text messages leading up to the crash. She says she "may have known" he was driving.

"What I find interesting was her testimony at depositions was that she answered by saying, 'This is what teenagers do,'" Weinstein said.

Thirty-eight states have banned texting behind the wheel. Government statistics say 24 percent of vehicle crashes can be attributed to phone use while driving.